Communicated on 16 March 2016
THIRD SECTION
Application no. 23038/15
Jennifer Suzanne GASPAR
against Russia
lodged on 8 May 2015
STATEMENT OF FACTS
The applicant, Ms Jennifer Suzanne Gaspar, is an American national who was born in 1971 and lives in Prague. She is represented before the Court by Mr S. Golubok and Ms O. Tseytlina, lawyers practising in St Petersburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information and decision to revoke the applicant’s residence permit
In 2004 the applicant moved to Russia, where in 2005 she married Mr I.P., a Russian citizen, with whom she had a daughter who was born in 2009. The applicant and her family lived in St Petersburg.
The applicant lived in Russia on the basis of regularly extended temporary residence permits. On 17 February 2010 the St Petersburg department of the Federal Migration Service (hereinafter “the FMS”) (Управление Федеральной миграционной службы России по Санкт-Петербургу и Ленинградской области (ФМС)) issued the applicant with a five-year residence permit valid until 17 February 2015.
On 15 October 2013 the applicant applied for Russian citizenship.
On 18 March 2014 the St Petersburg department of the Federal Security Service (hereinafter “the FSS”) (Управление Федеральной службы безопасности по Санкт-Петербургу и Ленинградской области (ФСБ)) issued a report stating that the applicant represented a threat to national security and that her application should therefore be rejected.
On 28 March 2014 the FMS rejected the applicant’s citizenship application on the grounds that she posed a threat to national security. The applicant did not appeal against that decision.
In its letter of 17 June 2014 (in the documents submitted the letter is also referred to as the recommendation of 23 June 2014) the FSS recommended that the FMS revoke the applicant’s residence permit.
On 21 July 2014 the FMS revoked the applicant’s residence permit, referring to the above-mentioned recommendation of the FSS. The decision stated in particular that in view of information received from the FSS, the applicant’s residence permit must be revoked under section 9(1)(1) of the Federal Law on the Legal Status of Foreigners in the Russian Federation (hereinafter “the Legal Status of Foreigners Act”) which provides that a resident permit issued to a foreign citizen should be revoked if he or she advocates a radical change in the constitutional order of the Russian Federation or otherwise poses a threat to the security of the Russian Federation or its citizens.
On 5 August 2014 the applicant received a written notice from the FMS informing her that a decision to revoke her residence permit had been taken under section 9(1)(1) of the Legal Status of Foreigners Act. No explanation was provided.
The notice further stated that the applicant was to leave Russia within fifteen days of the decision (that is, no later than 5 August 2014) and that she would be subjected to deportation should she fail to comply.
The applicant and her daughter left Russia in August 2014. The exact date was not specified to the Court.
2. Appeal against the expulsion decision before the domestic courts
The applicant instituted two independent sets of proceedings in an attempt to obtain a judicial review of the expulsion decision.
(a) First set of proceedings before the Frunzenskiy District Court of St Petersburg
On 6 August 2014 the applicant complained before the Frunzenskiy District Court of St Petersburg (hereinafter “the District Court”) alleging that the decision to revoke her residence permit had been groundless. It had violated her right to respect for her family life, as it had compelled her to leave Russia where her husband and her minor child were living. The applicant urged the District Court to stay the enforcement of the decision until her complaint had been examined.
On 8 August 2014 the District Court refused to stay the enforcement of the decision. The applicant appealed and on 12 November 2014 the St Petersburg City Court (hereinafter “the City Court”) upheld the District Court’s refusal.
On 14 August 2014 the applicant’s counsel asked the District Court to retrieve a copy of the FSS report of 18 March 2014, stating that it had been the basis for the decision to revoke the residence permit. The request was refused.
On 19 August 2014 the District Court examined the complaint and rejected it. In its judgment it did not refer to any documents which had served as the basis for the decision to revoke the residence permit, other than mentioning that the measure had been imposed following the FSS’s recommendation of 17 June 2014. The court noted that the FMS had been the proper authority to impose the measure and that the relevant procedure had been complied with. It emphasised that the factual information which had served as the basis for the decision to revoke the residence permit was not amenable to judicial scrutiny and that the scope of the court’s review was limited to assessing whether the statutory procedure had been complied with. As to whether the measure amounted to an interference with the applicant’s family life, the court stated that despite the fact that the residence permit had been revoked, it was still open for the applicant to obtain a visa so that she could come to Russia to visit her family. It further held that since the applicant posed a threat to national security, the measure imposed on her was proportionate as the interests of society prevailed over her private interests.
The applicant’s counsel appealed against the above decision to the City Court stating, amongst other things, that the District Court had unlawfully limited the scope of its review and refrained from judicial scrutiny of factual circumstances which had served as the basis for the measure imposed on the applicant. He further stated that no evidence whatsoever had been produced in order to prove that the applicant posed a security threat. Moreover, she had been given no opportunity to refute the above allegations. Lastly, he argued that the District Court had not made a proper analysis of the interference with the applicant’s family life.
On 12 November 2014 the City Court upheld the decision of 19 August 2014, stating that the District Court had duly examined the necessary legal basis for the measure and that its decision had been lawful and reasonable.
(b) Second set of proceedings before the City Court
On 9 October 2014 the applicant’s counsel challenged the legality of the FSS report of 18 March 2014 and its recommendation of 17 June 2014, referring to those documents as having been the basis for the decision to revoke the residence permit. He asked a court to retrieve a full copy of the FSS report and other relevant documents in order to examine them at a hearing.
On 10 November 2014 the complaint was forwarded to the City Court, as the domestic regulations stipulated that the courts at regional level were to examine cases involving State secrets.
On 18 December 2014 the City Court examined the complaint. It held that the FSS report and the recommendation had been issued in accordance with the statutory procedure and that they had therefore been lawful. At the hearing the applicant’s counsel asked the City Court to examine the factual grounds for the decision and the report, and to urge the FSS to produce evidence showing that the applicant indeed posed a threat to national security. The City Court dismissed the request, stating that as the matter was within the FSS’s exclusive competence, it fell outside of the scope of judicial review.
The applicant’s counsel appealed against the decision of 18 December 2014 to the Supreme Court of the Russian Federation (hereinafter “the Supreme Court”). He alleged in particular that the City Court had rejected the complaint without having properly examined its subject matter, as a full copy of the FSS report and other documents on which the expulsion decision had been based had not been furnished at the hearing. The counsel stated that neither he nor the applicant had been given the chance to familiarise themselves with the contents of the FSS report or with any other documents containing details concerning the nature of the applicant’s activity which allegedly posed a risk to national security. Lastly, the counsel stated that the decision at issue had disrupted the applicant’s family life. In a separate request he asked the Supreme Court to retrieve a full copy of the report and the relative documents.
On 29 April 2015 the Supreme Court upheld the decision of the City Court. Prior to the hearing the applicant’s counsel had given a confidentiality undertaking not to disclose the information examined in the course of the hearing. The FSS provided the court with a copy of its report of 18 March 2014. The Supreme Court examined it and found it lawful. It further held that the information contained in the report was a State secret and that it could not be disclosed. Consequently, the applicant’s counsel was not allowed access to the document, in spite of the confidentiality undertaking. As to whether the measure imposed on the applicant amounted to an interference with her right to family life, the Supreme Court found that the measure was justified by considerations of national security.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the decision to revoke her residence permit violated her right to respect for family life, as it deprived her of any legal basis to remain in Russia and made her liable to deportation. She further complains under Articles 8 and 13 of the Convention that the judicial review of her appeal against her expulsion was limited in scope and took place after the expulsion had been effected, that the accusations against her were based on secret documents to which she had no access and that, therefore, she had been denied the opportunity to refute the allegations.
QUESTIONS TO THE PARTIES
1. What were the motives and factual grounds for the decision to revoke the applicant’s residence permit in Russia? The Government are requested to produce a copy of the report of the Federal Security Service of 18 March 2014, its recommendation of 17 June 2014 and other documents from the Federal Security Service and other authorities which served as the basis for the decision. The Court notes that access to those documents may be restricted pursuant to Rule 33 §§ 1 and 2 of the Rules of Court.
2. What was the scope of the review carried out by the Frunzenskiy District Court of St Petersburg, the St Petersburg City Court and the Supreme Court of Russia in which the applicant’s appeals against the measure imposed on her were examined? Was the judicial review limited to ascertaining that the measure had been effected in accordance with the statutory procedure and, in particular, that the Federal Security Service had had the administrative competence to issue the documents which formed the basis for the decision to revoke the residence permit? Was it within the courts’ competence to verify whether the decision to revoke the residence permit had been made on genuine national security grounds and whether the relevant authority had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a risk in that regard? Did the courts weigh the need to protect national security against the applicant’s right to respect for family life?
3. Were the classified documents from the Federal Security Service disclosed to the applicant or her representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in those documents? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the applicant?
4. Did the decision to revoke the applicant’s residence permit constitute an interference with her right to respect for family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see Üner v. the Netherlands [GC], no. 46410/99, §§ 54-60, ECHR 2006‑XII; C.G. and Others v. Bulgaria, no. 1365/07, §§ 37-50, 24 April 2008; and Slivenko v. Latvia (dec.) [GC], no. 48321/99, §§ 93-129, ECHR 2002‑II (extracts))?
5. Did the applicant have an effective domestic remedy within the meaning of Article 13 of the Convention, in respect of the alleged violation of Article 8 of the Convention (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012)?
6. The parties are requested to inform the Court about the progress made in the domestic proceedings (if any) and to submit related documents (cassation appeal, decision of the court of cassation, and so on).
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